HKSAR v. KAN SING

DCCC 1111/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1111 OF 2011

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REASONS FOR SENTENCE

  The defendant faces 1 charge of "Trafficking in a dangerous drug". He pleaded not guilty to "Trafficking", but guilty to "Possession". After trial, he was found not guilty of "Trafficking" but guilty of "Possession". The dangerous drug involved is heroin.

2.  The facts are straightforward.  About 4:40 pm on 8 August 2011, customs officers saw the defendant walking into Man Kin House, Tsz Man Estate, Tsz Wan Shan.  The officers followed him and they all ended up in the elevator.

3.  The defendant exited the elevator on the 2^nd Floor and walked towards the smoke door.  The customs officers followed him and intercepted the defendant from behind.  They searched the defendant at the staircase of Man Kin House.  From the defendant's handbag, PW1 found a black plastic bag containing 2 knotted plastic bags which contained a total of 56.32 grammes of a mixture containing 28.23 grammes of heroin hydrochloride.

4.  Under caution, the defendant admitted that the 2 lumps of heroin were for his own consumption.  He also admitted that he was residing at Room 208, Man Kin House.  Using a key found on the defendant, PW1 and PW3 entered Room 208 and conducted a house search.  No packaging equipment was found in the defendant's home.

5.  The defendant is almost 60 years old.  He has 11 conviction records ranging from manslaughter, robbery to theft and common assault.  He was convicted of "Possession" in 2002 and 2007 respectively and "Trafficking" in 2008.

6.  The defendant is married with 3 adult children and a 9-year-old son, who resides in mainland China.  From January to July 2011, the defendant worked as a decoration worker earning $800 per day.  He also claimed that he would receive a total of $15,000 from his 3 adult children each month as spending money.

7.  In the course of mitigation, Mr. Percy informed the court that before trial, defence has made 2 attempts to make a plea offer to the Prosecution, but both were rejected.  Mr. Percy stressed that it was the defendant's intention all along to plead guilty to "Possession" and not to waste any of the court's time.  In relation to the latent risk factor, Mr. Percy submitted that the risk is low because there is nothing to suggest that the defendant associated with any addicts or had any opportunity to share his drugs with others. Furthermore, the risk of the defendant selling drugs to make a living is slim because he had a stable source of income.  Mr. Percy submitted that a starting point of 2 to 2.5 years would be appropriate.

8.  The defendant accounted for his addiction history in his evidence.  From 1973 to 1990, he injected heroin by syringe.  He managed to stay clean from 1990 to 1997.  After having lymphatic cancer in 1997, he resumed his drug habit by smoking heroin cigarettes in 1998 and until his arrest.  Surprisingly, he did not have his first drug-related conviction until 2002.  Moreover, he was never sentenced to DATC.

9.  A total of 28.23 grammes of heroin hydrochloride are involved in this case.  Even according to the defendant himself, such quantity is enough to feed his drug habit for 2 months.  According to the sentencing guidelines laid down in The Queen v LAU Tak-ming & others [1990] 2 HKLR 370, the defendant would be facing a starting point of 6 years' imprisonment had he been convicted of "Trafficking" after trial.

10.  Based on the quantity of heroin involved and the defendant's background, an immediate custodial sentence is inevitable in this case.  However, as I am statute-bound to call for a DATC Report, I adjourned the sentence until today.  Since the defendant has been remanded in jail custody for over 5 months, it follows that he is not a drug dependant as revealed in his DATC Report.

11.  When determining the proper starting point, I have borne in mind the 3-step approach laid down by the Court of Appeal in HKSAR v WAN Sheung Sum [2000] 1 HKLRD 405.  First, the defendant being a repeated offender of "Possession", for 28.23 grammes of heroin, I adopt a starting point of 20 months' imprisonment.  Second, I am aware that no packaging paraphernalia was found in the defendant's home and all the evidence does suggest that the defendant was going nowhere but home even though he took a slight detour on the 2^nd Floor.  On the other hand, the defendant has 1 previous record involving 2 "Trafficking" offences.  Furthermore, the quantity of the heroin itself must be a latent risk factor.  Hence, I consider the latent risk to be moderately high in this case; I will add 7 months to reflect it.  In other words, the starting point shall be 27 months.

12.  The defendant has pleaded guilty to "Possession" at the outset.  I will give him the usual one-third discount, reducing the sentence to 18 months.  Apart from this, I see no other mitigating factors which warrant any further discount. The sentence I impose is 18 months.